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Agency Need Not Put Dollar Value On “Relevant” Past Performance

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Koprince Law LLC

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An agency’s solicitation was not unreasonably vague where the solicitation defined “relevant” past performance to include projects of “a similar dollar value and contract type.”

In a recent bid protest decision, the U.S. Court of Federal Claims rejected a protester’s assertion that the solicitation was required to identify a specific dollar value associated with relevant past performance, finding that the solicitation’s phrasing was sufficient to allow offerors to compete intelligently.

The Court’s decision in WorldWide Language Resources, LLC v. United States, No. 16-424 C (2016) involved an Army solicitation for the Department of Defense Language Interpretation and Translation Enterprise IID (DLITE II) contract, a multiple-award IDIQ contract for linguist services supporting military operations internationally.  The solicitation called for a best value evaluation considering four factors: Technical, Small Business Participation, Past Performance, and Price.

Under the Past Performance factor, the solicitation required offerors submit up to three “relevant and recent” contracts of a “similar size, scope and nature to the scope of the work” identified in the solicitation.  The solicitation originally defined relevant contracts as those “of comparable magnitude and complexity” to those described in the solicitation.  Amendment 7 to the solicitation defined relevant as contracts that are “of a similar dollar value and contract type, and include a similar degree of subcontract/teaming.”

WorldWide Language Resources, LLC filed a pre-award bid protest challenging the terms of the solicitation.  WorldWide argued, in part, that the past performance factor was unreasonably vague because the solicitation did not specify a dollar value for relevant past performance.  WorldWide contended that “it would be impossible to know whether past performance is relevant without a dollar value to which it could be compared.”

The Court wrote that a solicitation must provide “sufficient information to allow offerors to bid intelligently and to allow the agency to meaningfully evaluate competing proposals.” With respect to past performance, “the FAR entrusts the critical determination of what does or does not constitute relevant past performance to [the agency’s] considered discretion.”  An agency’s determination of relevance is especially worthy of deference because it is “among the minutiae of the procurement process which this court will not second guess.”

In this case, the Court held, the solicitation “has adequately described the method by which past performance will be evaluated.”  The information provided in the solicitation was “sufficient for offerors to bid intelligently,” and “[t]he Agency is not required to define relevant past performance with a dollar value.”  The Court denied WorldWide’s protest.

Government solicitations often define relevant past performance in broad terms like those used in the WorldWide Language Resources case.  Although some offerors might prefer a more specific definition, there is no requirement that an agency define relevance by reference to a dollar value.


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